Upsher

A jury convicted Steven Legust Upsher of dissuading a witness with a prior conviction for the same offense (Pen. Code, § 136.1, subd. (c)(3); count 1), attempting to dissuade a witness (§ 136.1, subd. (b)(1); count 2), and battery on a spouse, cohabitant, or person with whom a defendant has or has had a dating relationship (§ 243, subd. (e)(1); count 3). Upsher admitted allegations that his prior conviction for dissuading a witness constituted a serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced him to four years on count 1 (double the low term of two years), two years on count 2 stayed under section 654, and five years for having a prior strike conviction, for a total nine-year prison term.

On appeal, Upsher challenges his conviction under section 136.1, subdivision (c)(3), contending it constitutes a “sentencing enhancement provision,” not a separate and distinct offense from the section 136.1, subdivision (b)(1) attempt offense. He alternatively contends his conviction on the count 2 offense under section 136.1, subdivision (b)(1) must be stricken as…